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Union releases email, alleges MPCA pressured EPA staff

Updated with EPA comment

Posted
Thursday, June 20, 2019 7:00 am

Marshall Helmberger

REGIONAL—The union representing Minnesota staff at the federal Environmental Protection Agency released an internal email this week that bolsters the case that top officials with the Minnesota Pollution Control Agency sought to convince EPA officials to withhold public comments as the state agency finalized a water discharge permit for PolyMet Mining. Canadian-based PolyMet is proposing to build Minnesota’s first copper-nickel mine near Hoyt Lakes.The American Federation of Government Employees (AFGE) Local 704, indicated in a press statement that they obtained the email, written by Shannon Lotthammer of the MPCA, in an anonymous leak from an apparent EPA whistleblower. The union released the email in response to news reports raising questions about the permitting process for the controversial PolyMet mine. Lotthammer was Assistant MPCA Commissioner at the time she sent the email on March 13, 2018, but she has since transferred to the Department of Natural Resources.“We are releasing internal correspondence which shows that the state of Minnesota pressured EPA Region 5 to delay submitting its comments on the PolyMet mine permit until after the public comment period elapsed,” said Nicole Cantello, President of AFGE Local 704. “The apparent actions by both EPA and MPCA leadership to avoid transparency about the environmental impact of the PolyMet mine should raise serious flags,” added Cantello.Rather than submit the comments in writing, as it typical on major permits, EPA whistleblowers state that EPA’s Great Lakes region director Cathy Stepp required staff to read their comments over the telephone to the MPCA, rather than submitting the written comments, where they would be considered part of the administrative record that a court might examine. MPCA officials acknowledge the phone call from EPA staff, but state that they subsequently destroyed their notes of the conversation.Last week, under pressure from a lawsuit, the EPA publicly released the written comments that agency staff had prepared to submit to the MPCA on the PolyMet permit. Portions of those comments raised serious questions about the permit’s compliance with key requirements of the Clean Water Act.The leaked email from Lotthammer to EPA Region 5 Chief of Staff Kurt Thiede shows that MPCA pressured EPA to delay the submission of comments on the PolyMet permit, even though those comments, if submitted, were legally required to be published during the public comment period. “By asking EPA to submit its comments after the public comment period, in whatever form, MPCA was attempting to suppress those comments from public review,” said Cantello. “This suppression is completely inappropriate and allowed those comments to remain secret.”Lotthammer’s email, in part, states:“The concern we have expressed to Region 5 staff/mgrs is the timing of EPA comments, not the ability for EPA to comment. The draft permit that is the subject of this discussion is on public notice until March 16. We know that we will be making some changes to the draft permit in response to public comments, and also questions raised by EPA. We have asked that EPA Region 5 not send a written comment letter during the public comment period and instead follow the steps outlined in the MOA, and wait until we have reviewed and responded to public comments and made associated changes before sending comments from EPA.”Apparently following Lotthammer’s urging, the EPA did not submit any written comment during the public comment period, nor did any such comments appear in the public record for the PolyMet permit.The union also alleges that the MPCA may have misled the Minnesota Court of Appeals in a May 31, 2019, filing when agency officials stated that the agency “did not receive written comments from EPA, did not take efforts to keep EPA’s written comments out of the administrative record, or fail to disclose the existence of EPA comments.”

Update:

Following publication of this story, the Region 5 office of the EPA released the following statement:"EPA takes seriously its responsibility to work with states to ensure permits meet applicable federal requirements. To implement this responsibility in Minnesota, a memorandum of understanding describing how EPA and the Minnesota Pollution Control Agency work together to review Clean Water Act permits has been in place for many years. This framework ensures that permits are thoroughly reviewed as efficiently as possible. While EPA may provide comments in writing, under the MOU it is not the only means of providing input to the state.

EPA strongly objects to use of terms like “malfeasance” and “collusion” to characterize the agency’s review of MPCA’s draft permit for the PolyMet mine. EPA’s actions regarding the review of the PolyMet permit are consistent with the requirements of the Clean Water Act.

The email from Shannon Lotthammer is part of a collection of documents set to be released pursuant to one or more FOIA requests. Among those documents is EPA’s response to the MPCA request, which the Region is releasing in its discretion now (see attached). The Region’s response ensured ample time to review the revised permit and preserved the Region’s right to comment (including in writing) on — and potentially approve or object to — the state’s permit.

EPA provided the comments and recommendations our regional staff compiled on the proposed PolyMet mine. These comments and recommendations were discussed with MPCA, PolyMet Mining Co., and other interested stakeholders. As a result, the permit was changed to reflect many of EPA’s recommendations.

This matter is currently being looked into by EPA’s inspector general. EPA welcomes this inquiry. The agency will provide the information requested by the inspector general and encourages any employees who feel they have pertinent information to contact the OIG directly."